Dammeyer v. Vorhis
| Decision Date | 13 October 1916 |
| Docket Number | No. 9076.,9076. |
| Citation | 113 N.E. 764,63 Ind.App. 427 |
| Parties | DAMMEYER et al. v. VORHIS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; John J. Rochford, Judge.
Action by Mollie Vorhis against Charles G. Dammeyer and others. Judgment for plaintiff, and defendants appeal. Reversed, with instructions.
Hooton & Hack, of Indianapolis, for appellants. White & Jones, of Indianapolis, for appellee.
This was a suit by appellee against appellants, and also one Stark, for personal injuries alleged to have been received by falling into a cellarway leading from a sidewalk to a basement of a building in the city of Indianapolis, on the night of September 28, 1911. The cause was tried upon a second amended first paragraph and a second paragraph of complaint.
A demurrer to the second paragraph of complaint, for want of facts, was overruled, and this action of the court, and the overruling of appellants' motion for a new trial, are assigned as errors in this court.
The second amended first paragraph of complaint charges in substance that appellants were the owners of said building and rented the first floor and basement of the same to said Stark; that under said building was a basement which was reached by a stairway leading from an opening in the sidewalk along the side of the building, which covered almost the entire width of said walk and was used by said Stark to enter said basement, all of which was known to said owners; that said owners had provided and maintained iron grating doors over said opening which had to be lifted and laid back to a point beyond the perpendicular to gain access to the basement; that said owners negligently failed to provide any guard or light around said opening and that a guard could have been erected to protect pedestrians against injury when said cellar doors were open; that said Stark opened said doors on said night and negligently failed to provide any guard or danger signals, and while so open appellee fell into said opening and down said stairway and received the injuries for which she sues.
The second paragraph of complaint is similar to the second amended first paragraph, and, in addition, alleges that said owners knowingly and negligently permitted said iron grating doors to become out of repair, in this, that the stops or blocks, which formerly had been on the side of the building against which said doors rested when open, were allowed to become insufficient for said purpose; that when such blocks were not upon the side of said building said doors, when open, instead of standing perpendicular, and thus forming a guard about the opening, would lie almost flat upon the sidewalk, in which position they formed no guard or protection; that when said doors were raised the opening constituted a highly dangerous place, and was a nuisance, as said walk was much used by the public, all of which was known to said owners.
As will be seen, the second amended first paragraph of complaint seeks to hold appellants liable as owners of the building for their failure to provide a guard or light around said opening, when the doors were raised or open; and said second paragraph seeks to hold appellants liable, as owners of the building, for negligence, in knowingly permitting the blocks, formerly on the side of the building, which held the doors nearly upright when open, to become out of repair and ineffectual for the purpose, and that, when the doors were open, they, and the opening, constituted a nuisance.
It is not contended by appellee, in either paragraph of the complaint, that the doors over the cellarway were not properly constructed, or were not in good condition, or that the walk over them was not safe for use by the public, when the doors were closed.
It is not disputed that Stark was a tenant, in possession, at the time of the injury, nor is it disputed that he left the cellar doors open and failed to guard the opening. For this negligence the tenant is liable, it being shown that appellee's injury was caused thereby.
[1] The only negligence charged against appellants, in their second amended first paragraph of the complaint, is their failure to guard the opening when the doors were open. Appellants were not negligent in this regard, as will hereinafter appear by the authorities cited, and as appellee admits by her failure to cite any authority, or to contend otherwise, in her brief; and it follows, in our opinion, that appellants were not negligent, as charged in the second paragraph of complaint, in their failure to provide the block on the side of the building, which, at best, could furnish only a partial guard to the opening.
[2] But the second paragraph of the complaint not only charges appellants with negligence in failing to provide the blocks on the side of the building, but charges:
“That when said guard or cover over said opening was raised, said opening and the cover thereof constituted a highly dangerous place, and the same was a nuisance.”
It is not charged in said second paragraph of complaint that appellants, in the construction and maintenance of said stairway and covering, violated any statute of this state or any ordinance of said city; so if they are to be held guilty of maintaining a nuisance they must be so held under the common law.
We have examined all the authorities cited by appellee, which hold the landlord liable in such cases, and find them to be cases where the doors or covering to the entrance were either not properly constructed or had been allowed to become defective and were in such condition as to constitute a nuisance per se, at the time of the letting, except cases where the landlord had agreed to keep the premises in repair. In the latter cases we find none holding that such an opening is a nuisance, when properly covered, and the covering is in good condition.
In the instant case there is no charge in the complaint that appellants agreed to keep the leased premises in repair, but appellee proceeds on the assumption that such was their duty. Such assumption is unwarranted, as that duty rested upon the tenant under the allegations of the complaint. Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255; Monnett v. Potts, 10 Ind. App. 191, 37 N. E. 729;Lake Erie, etc., R. Co. v. Maus, 22 Ind. App. 36, 51...
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Salt Lake City v. Schubach
...... *". . . For. negligent use of an appurtenance in good condition the weight. of authority holds the tenant alone liable. Dammeyer . v. Vorhis , 63 Ind.App. 427, 113 N.E. 764; [108 Utah. 279] Frischberg v. Hurter , 173 Mass. 22, 52. N.E. 1086; Muller v. Baskowitz , 157 ......
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Lyman v. Hermann, 31612.
......Trap doors were considered not nuisances in Clay v. El Dorado Hotel Co., 121 Ark. 253, 180 S.W. 977;Rider v. Clark, 132 Cal. 382, 64 P. 564;Dammeyer v. Vorhis, 63 Ind.App. 427, 113 N.E. 764;Handlon v. Copestone Temple Association, 106 N.J.L. 362, 150 A. 386. Large buildings, such as hotels, ......
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Lyman v. Hermann
...not nuisances in Clay v. El Dorado Hotel Co., 121 Ark. 253, 180 S.W. 977; Rider v. Clark, 132 Cal. 382, 64 P. 564; Dammeyer v. Vorhis, 63 Ind.App. 427, 113 N.E. 764; Handlon v. Copestone Temple Association, 106 N.J.L. 362, 150 A. 386. Large buildings, such as hotels, department stores and o......
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Kalil v. Wolldenroot Operating Co.
...to protrude above the sidewalk level because of worn rivets as a result of which another recovered against the City. In Dammeyer v. Vorhis, 63 Ind.App. 427, 113 N.E. 764, the plaintiff fell into a cellar opening from the sidewalk when the cellar door was left open on a dark night and the ne......